Odnos slobode vršenja članskih prava i obveze lojalnog postupanja

Freedom to exercise shareholders’ rights and the obligation to act loyally represent two opposing poles of corporate governance. In their absolute form, each of these principles would negate the other, which makes it is necessary to establish criteria for achieving an optimal balance between them. The starting point must be the purpose of the company, from which the duty of loyalty derives and which manifests itself differently with regard to three categories of shareholders’ decisions and other rights. The first category consists of management decisions through which the purpose of the company is directly pursued. When voting for these resolutions, shareholders must act loyally and fully subordinate their personal interests to the interests of the company. The second category comprises resolutions amending the articles of association, such as an increase or a reduction of the share capital. Since the goal of the company depends on the specific articles of association, and not vice versa, shareholders are not obliged to act loyally when voting for or against an amendment. The third category includes other shareholders’ resolutions and rights, such as resolutions on the distribution of profits, resolutions on the appointment and dismissal of management board members, and the right to transfer shares. Through them, shareholders have the opportunity to pursue their personal interest, which may differ from the company’s purpose, but are not completely independent of it. Therefore, shareholders are bound by loyalty only if it is certain that their benefit will result in a disproportionate harm to the company or other shareholders.